Research Articles (Public Law)

Permanent URI for this collection

http://hdl.handle.net/11660/12207

Browse

Browsing Research Articles (Public Law) by Issue Date

Filter results by year or month
Now showing 1 - 3 of 3
  • Thumbnail Image
    ItemOpen Access
    A critical analysis of the inefficacy of court - Annexed Mediation (CAM) in South Africa – Lessons from Nigeria
    (University of the Free State, 2021) Muller, E. C.; Nel, C. L.
    As a result of defects in the South African civil justice system, the Department of Justice and Constitutional Development introduced voluntary court-annexed mediation (CAM) in the magistrates’ courts in 2014. CAM was chosen under the broader need for greater access to justice because it has the potential to make dispute resolution efficient, amicable, and affordable. It can, therefore, contribute to access to justice for all members of society. Since the amendment of the Magistrates’ Court Rules to provide for CAM, the uptake of mediation in terms of the CAM system has unfortunately been inadequate. The aim of this article is to identify reasons for the inefficacy of CAM since its implementation. We use normative research to critically analyse existing court rules and authority. We conclude that there are several reasons for CAM’s inefficacy which are elucidated in the main text. It is important to understand these reasons, as the legislature presents CAM as a mechanism to improve access to justice. From this platform, we evaluate the mechanisms for court-connected alternative dispute resolutions provided by the Nigerian Multi-Door Courthouse (MDC) system. This reveals policies and practices that could potentially improve the efficacy of CAM in South Africa, as these relate to the factors identified as impediments to the optimal functioning of CAM in our civil justice system. As such, we identify valuable lessons that can be learned from this comparison. Building hereon, and on the conclusions reached elsewhere in the article, we postulate that the mediation scheme, as contemplated by Rule 41A of the Uniform Rules of Court (as applied in the superior courts), should also be implemented in the magistrates’ courts. The article concludes that improving CAM in South Africa is of critical importance to advancing access to justice and departing from a culture of conventional adversarial dispute resolution.
  • No Thumbnail Available
    ItemMetadata only
    The Maputo protocol: a reason to hope
    (Unisa Press, 2023) Prinsen, Larisse
    No abstract available
  • Thumbnail Image
    ItemOpen Access
    Introducing dynamic consent for improved trust and privacy in research involving human biological material and associated data in South Africa
    (Frontiers Media, 2024) Prinsen,Larisse
    Biomedical research using human biological material and data is essential for improving human health, but it requires the active participation of many human volunteers in addition to the distribution of data. As a result, it has raised numerous vexing questions related to trust, privacy and consent. Trust is essential in biomedical research as it relates directly to the willingness of participants to continue participating in research. Privacy and the protection of personal information also influence trust. Informed consent has proven to be insufficient as it cannot overcome the informational deficit between primary and unknown future uses of material and data and is therefore not fully informed and invalid. Broad consent is also problematic as it takes full control of samples and data flow from the research participant and inherently requires that a participant must trust that the researcher will use their material or data in a manner that they would find acceptable. This paper attempts to offer some insight into how these related issues can be overcome. It introduces dynamic consent as a consent model in research involving human biological material and its associated data. Dynamic consent is explained, as well as its claims of superiority in instances where future research is possible. It is also shown how dynamic consent contributes to better control of the samples and data by the research participant, and how trust may be improved by using this consent model. Dynamic consent’s co-existence with and support of the South African Protection of Personal Information Act of 2013 is also assessed. The limitations of dynamic consent are also discussed.